Morality In Law

Morality In Law
Gabriel Rubio Llano
Gabriel_r92@hotmail.com
Introduction
As explained in this topic lawyers are always very intrigued in the question “What is Law? This general question about the nature of law presupposes that law is a unique social-political phenomenon, with more or less universal characteristics that can be discerned through philosophical analysis.” In this essay we arenot going to try and define what law is, just give a basic idea of what it is and then go into the real topic which will be “are laws based on a moral value.” Since quite a while now there has been a great discussion between the Jus-Naturalist lawyers, and the Legal Positivism lawyers. This is where both parties stand in our discussion, positivists lawyers say moral legitimacy does not affect law,when naturalist lawyers say moral legitimacy is included in the legal validity of Law. In my personal opinion moral values are where Law comes from.
Body
Basically the positivists assert and the naturalists deny, what do they assert and deny, well that the conditions of legal validity are purely a matter of social facts. “In contrast to Positivism, Natural Law claims that the conditions oflegal validity are not exhausted by social facts; the moral content of the putative norms also bears on their legal validity. As the famous dictum of Saint Augustine has it: ‘lex iniusta non est lex’ (unjust law is not law).” By this I believe that natural lawyers are trying to tell us, that all that is Law comes from a moral value, and I say I have to agree with them, why would they say that thelegal validity of Law is not only a purely a matter of social facts. Well for starters, moral value helps you decide what is right and what is wrong, therefore creating a slight sense of justice. We know now a days not all laws are just, since justice can be seen from a lot of points of view, and so does morality. Still how can you create Law which is not entitled to help people out, to make theworld a better place, to be fair for all races and genders, when you don’t have an accurate sense of what is good and what is bad. In my personal opinion this cannot be done, this is where the moral values come into place when talking about Law. Yes there will be times when you look at certain places where Law applies and say well this is morally incorrect to me, but that is why Law takes place in somany different environments, places, situations, etc. because the culture, setting or environment in which a person grows up or develops has its own culture, its own traditions, so this directly affects their moral value, since they see things one way and you see them in another.
Positivists on the other hand say moral value has nothing to do with the validity of Law. “The main insight of LegalPositivism, that the conditions of legal validity are determined by social facts, involves two separate claims which have been labeled The Social Thesis and The Separation Thesis.” What I understood by social facts is that the positivists say that legal validity comes from events that have already happened, or one that might happen and will have a negative effect on society. The Social Thesisspeaks about maintaining the conceptual separation between law and morality, that is, between what the Law is, and what the law ought to be. But as the separation thesis says if properly understood is “What the law is cannot depend on what it ought to be in the relevant circumstances.” This is where the contradiction between naturalists and positivists occur, since natural lawyers state that lawshould be morally correct and always just, which is how it ought to be, and positivists say the law should be based on social facts and do not include any moral value. There are various types of positivists. “A contemporary school of thought, called Inclusive Legal Positivism, endorses the Social Thesis, namely, that the basic conditions of legal validity derive from social facts, such as social...